Child custody laws can be confusing to navigate, especially when parents have separate households and one parent wishes to move. Whether following a divorce or other family proceeding, moving can significantly impact both parents’ rights under Indiana child custody and parenting time orders. As a result, parents subject to an Indiana child custody or parenting time order must take extra steps and may be subject to changes in those orders when they relocate.
Indiana child custody and relocation are inextricably entwined. If your relationship with your children involves a custody or visitation order, understanding how one parent’s plan to relocate can impact your family’s custody and parenting time orders—and working with experienced Indiana family lawyers—is critical for protecting you and your children.
When Child Custody and Relocation Affect Each Other
Child custody orders may be necessary in any case in which there are minor children and the parents or other persons providing primary care for the child are not married or do not live in a single household. Examples include:
When minor children are involved in any of these types of cases, the court will enter a custody order allocating the decision-making authority regarding the child’s upbringing and establishing a parenting time schedule.
Legal and physical child custody and relocation can clash when one parent plans to move. A local move may impact the children’s public school district or other educational options, childcare options, extracurricular activities, and the feasibility of the existing parenting time order. Plans to relocate further away can have an even greater effect in all of these areas.
Before ever taking steps toward relocation, parents need to understand the types of Indiana child custody orders the process requires before one parent relocates and how working with an experienced Indiana family law attorney may be critical to protecting their rights and time with their children.
Types of Indiana Child Custody Orders
Courts enter two types of Indiana child custody orders: legal custody and physical custody. Legal custody is the legal authority to make decisions involving a child’s health education, religious training, and general welfare. When a court grants both parents joint legal custody, the parents must work together to agree when deciding matters concerning the child’s upbringing. Alternatively, the court may grant one parent sole legal custody, giving that parent the authority and responsibility to make decisions regarding the child’s rearing.
Physical custody—often called visitation or parenting time—determines the schedule governing when a child resides with or visits each parent. The court may approve a parenting time schedule mutually agreeable to the parents or, absent such agreement, may use the Indiana Parenting Time Guidelines to fashion a schedule that is in the best interests of the child.
A custody determination is part of every legal separation, divorce, and paternity proceeding in which the parties have minor children. In determining the appropriate custody order in each case, the court enters an order that serves the best interests of the child, considering the factors set out in Indiana Code § 31-17-2-8:
- The child’s age and gender
- Each parent’s wishes regarding custody
- Each child’s wishes regarding custody, giving more weight to the wishes of children age 14 and older
- The child’s interaction and relationship with each parent, siblings, and any other person who might affect the best interests of the child
- The child’s adjustment to home, school, and community
- The physical and mental health of all individuals involved
- Any evidence of a pattern of domestic violence
- Any evidence that a de facto custodian has cared for the child
- A power of attorney designation, if any, from authorized personnel such as the child’s parent or de facto custodian
If separating, divorcing, or unmarried parents agree on how they will make decisions about the child’s upbringing and when the child will be with each parent, they may submit that agreement to the court for approval. Once approved by the court, their agreement becomes an enforceable Indiana child custody or parenting time order. Otherwise, the court hears evidence from both sides to make a determination and enter an order on custody and parenting time.
Required Filings when Child Custody and Relocation Are Involved
Relocation—with or without children—can significantly impact each parent’s rights and access to their children, especially if the new home is some distance from the relocating parent’s current residence. The relocation could affect transportation to and from school, extracurricular activities, and parenting time. Relocation a significant distance away—such as to another state—can seriously impact the parenting schedule itself.
To address the concerns of both parents regarding child custody and relocation, the Indiana General Assembly has established a procedure that requires the relocating individual to give notice of intent to relocate to the court and the other parent, regardless of the moving distance. Under Indiana Code § 31-9-2-107.5, a relocating individual is any person intending to change his or her personal residence and who is seeking or has a current Indiana child custody or parenting time order (except for grandparent visitation).
Under Indiana Code § 31-17-2.2-1, the relocating parent must file a notice of intent to relocate with the court at least 90 days prior to moving. The notice must contain:
- The date of the planned move
- The residential address and mailing address of the new residence
- The home telephone number of the new residence
- Any other applicable phone numbers for the relocating individual
- A brief statement of the specific reasons for the proposed move
- Aproposal for a revised visitation schedule
- A statement that the non-relocating parent may file a petition to modify the relevant custody order, visitation order, grandparent visitation order, or child support order
Once the notice is filed, the non-custodial parent has 60 days to file a written objection to relocation with the court. The non-relocating parent may object for any number of reasons, such as:
- The relocation will deprive the parent of significant parenting time, thereby potentially harming that parent’s relationship with the child
- The non-relocating parent has legitimate reasons to believe the relocating parent will not facilitate a long-distance relationship between the non-relocating parent and the child
- The move would include the child and the child has strong ties to their current community
- The child is a teenager and does not wish to relocate
If the non-relocating parent does not timely file a written objection to the relocation, the court will automatically grant the custodial parent’s request to relocate.
If the situation is urgent, the court may issue a temporary order to have effect until a final decision about the relocation can be made. The judge may temporarily prevent the move if any of the following apply:
- The relocation notice was not filed within 90 days of the intended move
- There is no evidence of a visitation agreement
- It is likely that, after a final evidentiary hearing, the court will not approve the relocation
- The child has already moved without the required notice or without a court order or agreement between the parents
By contrast, however, the judge can also temporarily allow a move if:
- The relocating parent’s notice was timely filed
- The court issues a temporary, revised parenting time order
- It is likely that, after the hearing, the court will approve the relocation
When a Hearing Is Required for Child Custody and Relocation of a Parent (with or without the Children)
After a parent files a notice of intent to relocate, either parent can request a full evidentiary hearing. This hearing could include witness testimony and other evidence. Each party should present all evidence relevant to determining whether to allow the intended relocation without altering already existing custody, child support, and parenting time orders.
In support of a notice of intent to relocate, the filing parent must show that the proposed relocation is being made in good faith and for a legitimate reason. Depending on the facts of the case, obtaining a better paying job, relocating to join a fiancé(e), and moving closer to family or work may be considered legitimate reasons for the planned move. If the custodial parent has met this initial burden, the burden shifts to the other parent to show that the relocation is not in the best interest of the child.
A judge cannot legally prevent a parent from moving. However, the court can prohibit the children from relocating with the parent if it is not in the children’s best interests or feasible under the existing custody, child support, and parenting time orders. To decide whether a move is in the child’s best interests, the court might consider the following:
- The hardship and expense involved for the non-relocating parent to exercise parenting time
- The feasibility of preserving the relationship between the non-relocating parent and the child through an appropriate parenting time schedule
- A past pattern, if any, of the relocating parent trying to thwart visitation
- The child’s wishes, with more weight given to the opinion of a child age 14 or older
- The child’s interaction and relationship with each parent, siblings, and any other person significantly affecting the child’s best interests
- The child’s adjustment to home, school, and community
- The mental and physical health of everyone involved in the case
- Any evidence of a pattern of domestic or family abuse by either parent
Keffer Hirschauer LLP: Your Attorneys for Child Custody and Relocation
Many factors can impact custody and parenting time rights in a separation, divorce, or paternity proceeding. If you intend to relocate and have or are seeking an Indiana custody order or parenting time order, or if you are your children’s other parent is seeking to relocate—with or without the children—you need to contact an experienced family lawyer immediately. Failing to act within the statutory deadlines can impair your rights.
The legal team at Keffer Hirschauer LLP can help you protect your custodial and parenting time rights. Our Indianapolis family lawyers will assess your case to help you determine how to reconcile parenting time or child custody and relocation in your case and then chart a course to protect those rights moving forward. Don’t delay—schedule a consultation now by calling (317) 857-0160 or by completing our online contact form.
For more information about child custody and relocation, contact Keffer Hirschauer LLP to schedule your free consultation today.